April Ask Stacy: When It Rains, It Pours
It has been a rainy start to the year in Southern California, and I hate the rain. But what I love is hearing what is on your mind. I hope you enjoy my “hot takes” and insights based on my four-decade career as a family attorney, mentor, and proud mother of two terrific, grown, and well-adjusted children (oh, and I’ve also been divorced, so I have experience there, too!). Please read and enjoy, and please Ask Stacy (me) what is on your mind or how I might help!
ASK STACY: In honor of April Fool's Day, just a few days ago, can you share some of the most foolish things a spouse has done during divorce proceedings?
My Thoughts: There are not enough hours in the day to answer that question completely. And I am not exaggerating when I say that. But here is a short list of key takeaways that I hope you find helpful:
Never ignore a court order. You must comply. All parties must participate in the process. To do otherwise jeopardizes the best chances for the outcome to be fair and reasonable.
Always comply with discovery demands. What do I mean by that? You must show up at your deposition. Give thoughtful and accurate answers. Do not play the “I don't recall” game. In the end, it will not benefit you. In addition to depositions, answer interrogatories, requests for admission, etc., propounded on you. Also, produce documents voluntarily. If you do not respond voluntarily – prompting the need to be compelled formally – it will only cost you more money in the end, which is plain foolish and a waste of time.
Remember, invasion of privacy can be illegal! Even if you suspect your spouse of wrongful behavior, you must never put a tracking device on their car or go through their private phone or computer. And for heaven’s sake, do not attach a key logger to a computer. Yes, all of these things have been done in cases I have been involved in. And yes, they are all quite illegal. There is an expectation of privacy on your spouse’s password-protected property, which means it would be a big mistake to violate that privacy, even if you feel it is justified. (You can seek a court order to do these things.) Also, reading attorney-client privileged communications between your soon-to-be ex and her/his lawyer is forbidden. The old proverb -- two wrongs never make a right – is worth considering.
Do not bring the children into the middle of your divorce by attempting to influence them and trying to pit them against the other parent. That is, simply put, not good for your kids. In the end, you will just turn them into collateral damage. Protecting your kids should always be your highest priority. It is essential to remember that this divorce proceeding will be behind you at some point in the future, and you will have to carry on with your life. Your spouse will soon become your ex, but that person will never stop being your children’s parent, so you will have to make some form of amends with that for their sake.
Do not work at cross-purposes with your lawyer. Assuming you picked this person to represent you because you felt you could trust them, you must listen, cooperate, and actively participate in the process. After all, your attorney has your best interests at heart. Just as you should rely on your lawyer for expert counsel, you should do the same with your therapist. Cooperate in the process. Be engaged. Try to move things along, but don't expect everything to move at lightning speed. Particularly when it comes to the law and the courts, the legal system rushes for no man or woman!
ASK STACY: How significantly does the mental health of a spouse factor into a divorce?
My Thoughts: That is a fascinating question. Anyone who has gone through a divorce – or knows someone who has – knows that this deeply emotional process can be highly taxing on everyone’s mental health, even for the attorneys involved. We have learned to separate our personal feelings from the process (as best we can), which is the only way we can survive a long career in this business.
Now, when talking about mental health at the extreme, the most obvious impact would be in matters related to child custody. For good reason, the court tends to take the mental health of a parent very seriously when considering responsibility for the children. Another place where mental health could have a significant implication is spousal support, particularly in cases where the impaired person is the sole earner and is no longer able to work. I have dealt with this scenario and sincerely hope everybody stays healthy.
ASK STACY: Has the mere act of hiring you as a divorce attorney ever helped save a marriage?
My Thoughts: Absolutely. One of my favorite experiences was being able to help in saving a marriage. In this instance, I noticed subtle cues about how my client felt about his spouse. I asked if he wanted me to call opposing counsel and see if his wife might be open to attending therapy with him as a last-ditch effort to save the marriage. He loved this idea. So, I contacted opposing counsel, who agreed to discuss it with her client. Ultimately, they went to therapy and ended up saving their marriage. More recently, I had a similar situation, and as it turns out, it involved the same opposing counsel. My client desperately wanted to save his marriage and was willing to go to therapy to salvage things. Unfortunately, when presented with this option, his wife was not interested in working on the marriage. Divorce was the only choice at that point.
If I have any clue that a potential client is interested in saving their marriage, I will always ask the other side if they will entertain a reproachment. It is truly one of my great joys when I can help to keep a couple together. It might not be suitable for business, but I would rather see a couple find a way to work through their differences, especially when they are both willing to put in the hard work and see the value in saving the relationship.
ASK STACY: We missed the opportunity to create a prenup before we got married and had a child. Now, we are struggling. My husband wants to make a postnup to avoid issues down the road. What are my options?
My Thoughts: You can agree to a postnup and try to get the best you can. Or you can say no, and depending on your husband's thoughts, your marriage will go on, or he may end it. It depends on how high the stakes are for him and for you. In this situation, you may want to speak to a good lawyer who can examine the specifics of your situation and provide you with the best counsel.
ASK STACY: Stacy, I am afraid my husband (and father of our two children) is engaged in questionable business dealings. I love him very much, but I am scared for our future. Short of divorce, how can I protect my family and my best interests?
My Thoughts: I’m sorry to hear you are caught in a difficult situation that is none of your doing. The sad truth is that because your husband’s bad decisions could have ruinous consequences for your family, you are all potentially in jeopardy. Your income and assets could be exposed, and the cost of retaining legal counsel if your spouse is indicted or sued civilly could wipe you out financially. If your spouse is prosecuted criminally or has a court judgment against him, you will all be impacted, to say nothing of the emotional toll it will take.
You do not have a lot of great options. You could ask him for a postnuptial agreement, where you divide your assets and potentially your income streams so that certain assets are yours and should not be touched by whatever dealings he's involved in. You are in a very delicate situation that will require treading carefully. Whatever you do, you do not want to open yourself up to being implicated or shown to have known your spouse’s bad acts should they be exposed. Speaking to your attorney is probably a wise place to start.
I enjoy hearing from you. Please email me with any questions you have at AskStacy@mcgriffinmedia.com. I’ll do my best to share a response in an upcoming column.
Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.